Citation Nr: 0216258
Decision Date: 11/13/02 Archive Date: 11/25/02
DOCKET NO. 02-01 309 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to an increased rating for major depressive
disorder, currently rated 30 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
S. J. Janec, Counsel
INTRODUCTION
The veteran had active military service from May 1977 to
February 1992.
This matter comes before the Board of Veterans' Appeals
(Board) from a May 2002 rating decision of the Detroit,
Michigan, Regional Office (RO) of the Department of Veterans
Affairs (VA) which denied an increased rating for major
depressive disorder.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained and the
duties to inform and assist have been met.
2. The veteran's major depressive disorder is manifested by
disturbances in mood and motivation which results in
occupational and social impairment with reduced reliability
and productivity.
CONCLUSION OF LAW
The criteria for a 50 percent rating for major depressive
disorder have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A,
5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.159,
3.321(b), 4.1, 4.7, 4.130, Diagnostic Code 9434 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board has given consideration to the
provisions of the Veterans Claims Assistance Act of 2000
(VCAA) , Pub. L. No. 106-475, 114 Stat. 2096 (2000) [codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West Supp. 2002)]. This law eliminated the former statutory
requirement that claims be well grounded. Cf. 38 U.S.C.A.
§ 5107(a) (West 1991). The VCAA includes an enhanced duty on
the part of VA to notify a claimant as to the information and
evidence necessary to substantiate a claim for VA benefits.
The VCAA also redefines the obligations of VA with respect to
its statutory duty to assist claimants in the development of
their claims. Regulations implementing the VCAA have been
enacted. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) [codified
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2002)].
The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment but not yet final as of that date. Except for
provisions pertaining to claims to reopen based on the
submission of new and material evidence, which are not
applicable in the instant case, the implementing regulations
are also effective November 9, 2000. In this case, the
veteran's claim is not final and remains pending. The
provisions of the VCAA and the implementing regulations are,
accordingly, applicable. See Holliday v. Principi, 14 Vet.
App. 282-83 (2001) [the Board must make a determination as to
the applicability of the various provisions of the VCAA to a
particular claim].
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant.
The rating decision, statement of the case, and VA letters to
the veteran, apprised her of the information and evidence
needed to substantiate the claims, the law applicable in
adjudicating the appeal, and the reasons and bases for VA's
decisions. Furthermore, these documents outline the specific
medical and lay evidence that was considered when the
determinations were made. In particular, the December 2001
statement of the case specifically referenced 38 C.F.R.
§ 3.159 and apprised the veteran of the division of
responsibilities between VA and a claimant in obtaining
relevant evidence. There is no indication that this
correspondence was returned as undeliverable. As such, the
Board finds that the correspondence clearly satisfied VA's
duty to notify the veteran of the information and evidence
necessary to substantiate his claim and identified the
evidence that VA was to acquire on his behalf as required by
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. An examination is deemed "necessary" if the record
does not contain sufficient medical evidence for VA to make a
decision on the claim.
The Board finds that reasonable efforts have been made to
assist the veteran in obtaining evidence necessary to
substantiate her claim, and that there is no reasonable
possibility that further assistance would aid in
substantiating it. VA treatment records were associated with
the file and the veteran was afforded the appropriate VA
examination. There is no indication that there exists any
evidence which has a bearing on this case that has not been
obtained. The veteran and his representative have been
accorded ample opportunity to present evidence and argument
in support of this appeal and have not identified any
additional pertinent evidence that has not been associated
with the record.
As noted above the VCAA has eliminated the well-grounded
claim requirement, has expanded the duty of VA to notify the
veteran and the representative, and has enhanced its duty to
assist a veteran in developing the facts pertinent to the
claim. Since these legislative changes serve to eliminate
the "gatekeeping" function in the VA claims process imposed
by the standard for a well-grounded claim, see, e.g.,
Hensley v. West, 212 F.3d 1255, 1260 (Fed. Cir. 2000), the
Board is of the opinion that the new legislative changes are
more favorable to the veteran. See Karnas v. Derwinski, 1
Vet. App. 308, 312-13 (1991) [where the law or regulation
governing the case changes after a claim has been filed or
reopened, but before the administrative or judicial appeal
has been concluded, the version most favorable to the veteran
will apply].
VA issued regulations to implement the VCAA in August 2001.
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). The
amendments were effective November 9, 2000, except for the
amendment to 38 C.F.R. § 3.156(a), the second sentence of
38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), which
are effective August 29, 2001. VA has stated that the
provisions of this rule merely implement the VCAA and do not
provide any rights other than those provided in the VCAA. 66
Fed. Reg. 45,629. Accordingly, in general where the record
demonstrates that the statutory mandates have been satisfied,
the regulatory provisions likewise are satisfied.
In general, disability evaluations are assigned by applying a
schedule of ratings which represent, as far as can
practicably be determined, the average impairment of earning
capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4
(2002). The regulations require that, in evaluating a given
disability, the disability be viewed in relation to its whole
recorded history with an emphasis upon the limitation of
activity imposed by the disabling condition. 38 C.F.R. § 4.1
(2002). Furthermore, medical reports must be interpreted in
light of the whole recorded history, and each disability must
be considered from the point of view of the veteran working
or seeking work. 38 C.F.R. § 4.2 (2002). These requirements
operate to protect claimants against adverse decisions based
on a single, incomplete or inaccurate report and to enable VA
to make a more precise evaluation of the level of the
disability and of any changes in the condition. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991).
When entitlement to compensation has already been
established, and an increase in the disability rating is at
issue, it is the present level of disability which is of
primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994).
Cf. Powell v. West, 13 Vet. App. 31 (1999) (holding that
earlier findings may be used if the most recent examination
is inadequate). Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (2002). After
careful consideration of the evidence, any reasonable doubt
remaining should be resolved in favor of the veteran.
38 C.F.R. §§ 3.102, 4.3 (2002). To deny a claim on its
merits, the evidence must preponderate against the claim.
Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
When evaluating a mental disorder, the rating agency shall
consider the frequency, severity, and duration of psychiatric
symptoms, the length of remissions, and the veteran's
capacity for adjustment during periods of remission. The
rating agency shall assign an evaluation based on all the
evidence of record that bears on occupational and social
impairment rather than solely on the examiner's assessment of
the level of disability at the moment of the examination.
When evaluating the level of disability from a mental
disorder, the rating agency will consider the extent of
social impairment, but shall not assign an evaluation solely
on the basis of social impairment. 38 C.F.R. § 4.126 (2002).
The veteran is currently assigned a 30 percent disability
rating for major depressive disorder. Under the General
Rating Formula for Psychoneurotic Disorders, a 30 percent
rating is assigned when there is occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, mild memory loss (such as forgetting names,
directions, or recent events). A 50 percent rating is
assigned when there is occupational and social impairment
with reduced reliability and productivity due to such
symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships.
A 70 percent rating is warranted when there is occupational
and social impairment, with deficiencies in most areas, such
as work, school, family relations, judgment, thinking, or
mood, due to such symptoms as: suicidal ideation;
obsessional rituals which interfere with routine activities;
speech intermittently illogical, obscure, or irrelevant;
near-continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships.
A 100 percent rating requires total occupational and social
impairment due to such symptoms as gross impairment in
thought processes or communications; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
memory loss for names of close relatives, own occupation or
own name. 38 C.F.R. § 4.130, Diagnostic Code 9434 (2002).
Records from the Baton Rouge, Louisiana Outpatient Treatment
Center, dated from October 1998 to September 1999, reflect
that the veteran was seen for various physical complaints.
In September 1999, she complained of being tired all the time
because she had not been having restful sleep. It was noted
that her brother had recently committed suicide.
VA outpatient mental health clinical reports from the Battle
Creek, Michigan, VA Medical Center (VAMC), dated January 2000
to November 2000, indicate that the veteran received
treatment at the Mental Health Clinic. Mental status
evaluation in February 2000 revealed that she was slightly
anxious. Her mood was subdued and she admitted to being
depressed. An older brother had committed suicide in May the
previous year, but she no longer had thoughts of wanting to
harm herself. There was no evidence of a thought disorder;
she was relevant, coherent, and logical. Her verbal
abilities were very good and her memory, judgment, and
insight were intact. She had few community and social
supports. Moderate bipolar disorder with depression was
diagnosed. Her Global Assessment of Functioning (GAF) was
estimated to be 65. Approximately a week later, she was seen
for complaints of depression. She denied suicidal ideation
and her mood was even. She had been active and motivated
lately. However, she related that she had been guarded and
suspicious toward men since she had been raped during her
military service. Mixed bipolar disorder was diagnosed.
Upon VA examination in November 2001, the veteran reported
that she was divorced and living in a trailer. She had
recently moved and did not have any friends. She did visit
her grandmother in a nursing home. She had no joy or
pleasure in life and felt down-hearted. She currently worked
in a factory despite the fact that she had two Master's
degrees. She felt disappointed in herself and ruminated on
all the bad things that happened to her. Her boss at work
did not treat her well, but she was not able to quit because
she needed to pay her bills. She did not miss time for work.
Mental status evaluation revealed that the veteran was
restrained and withdrawn. She was slow to respond initially
but became more responsive during the interview. She was
frustrated by her inability to perform at a higher level.
Her speech was normal, her thoughts were organized and goal-
directed. She did not experience any hallucinations or
delusions. Memory and concentration were intact. The
assessment was moderate major depression. Her GAF was
estimated to be 65.
The criteria to determine the correct score on the GAF scale
are found in the Diagnostic and Statistical Manual of Mental
Disorders, 4th ed., of the American Psychiatric Association
(DSM-IV). A score between 61 and 70 contemplates some mild
symptoms (e.g., depressed mood and mild insomnia) or some
difficulty in social, occupational, or school functioning,
but generally functioning well with some meaningful
interpersonal relationships. A score between 51 and 60
contemplates moderate symptoms which result in moderate
impairment in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co-workers). The
GAF score is probative evidence for VA rating purposes,
because it indicates a person's ability to function in the
areas of concern in rating disabilities for VA purposes.
Massey v. Brown, 7 Vet. App. 204, 207 (1994).
While the record does not indicate that the veteran
experiences impaired judgment and memory, or impaired
thinking, she was found to suffer from typical symptoms
related to depression and bipolar disorder, including some
disturbances in mood and motivation, and difficulty
establishing and maintaining relationships. Despite a high
level of education, the veteran was employed in a factory.
Additionally, she did not have significant social supports.
The veteran's GAF score has been reported to be 65, which is
indicative of mild symptoms, as noted above. However, the
examiners described the veteran's symptoms as moderate.
Based on these clinical assessments, and consideration of
38 C.F.R. § 4.7, the Board finds that the veteran's
psychiatric disability results in occupational and social
impairment with reduced reliability and productivity. Hence,
she meets the criteria for a 50 percent rating . See
38 C.F.R. §§ 3.102, 4.7, 4.126, 4.130, Diagnostic Code 9434.
The evidence does not show that the veteran suffers from
deficiencies in most areas due to suicidal ideation,
obsessional rituals which interfere with routine activities,
illogical speech, or near-continuous panic or depression; a
neglect of personal appearance and hygiene; or an inability
to establish and maintain effective relationships. She has
maintained routine activities, including attention to her
personal appearance and hygiene. She was currently employed.
Accordingly, the Board finds that the evidence does not
support the assignment of a 70 percent rating for the
veteran's major depressive disorder.
Finally, a review of the record shows that the RO considered
the matter of an extraschedular rating under 38 C.F.R.
§ 3.321(b) (2002). The RO found that referral for extra-
schedular consideration was not warranted in this case. The
Board agrees. Ordinarily, the VA Rating Schedule will apply
unless there are exceptional or unusual factors which would
render application of the schedule impractical. 38 C.F.R.
§ 3.321(b)(1) (2001); Fisher v. Principi, 4 Vet. App. 57, 60
(1993). The regulation provides that, in exceptional
circumstances, where the schedular evaluations are found to
be inadequate, the veteran may be awarded a rating higher
than that encompassed by the schedular criteria. According
to the regulation, an extraschedular disability rating is
warranted upon a finding that "the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization that would render impractical the
application of the regular schedular standards." "An
exceptional case includes such factors as marked interference
with employment or frequent periods of hospitalization as to
render impracticable the application of the regular schedular
standards." Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
The record does not reflect that the veteran has required any
hospitalization for her psychiatric disorder. Moreover,
there is no objective evidence that her psychiatric disorder
disability markedly interfered with employment beyond that
contemplated by the rating schedule. While her position was
not compatible with her level of education, the veteran
maintained steady employment and did not miss time due to her
service-connected disability. Accordingly, the Board finds
that there is no objective medical evidence which
demonstrates anything exceptional or unusual about the
veteran's service-connected right knee disability which is
not contemplated in the criteria in VA's Schedule for Rating
Disabilities. See Van Hoose v. Brown, 4 Vet. App. 361, 363
(1993) [noting that the disability rating itself is
recognition that industrial capabilities are impaired].
Hence, referral of the case for extra-schedular consideration
pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted.
ORDER
A 50 percent rating for major depressive disorder is granted,
subject to the regulations governing the payment of monetary
awards.
U. R. POWELL
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.